Summary: We will not investigate Mr X’s complaint about how the Council dealt with works to an access road on its land which serves his partner Ms X’s property, it not replying to some correspondence, and a data protection issue. Ms X may appeal to a tribunal regarding the Council’s process and its outcome which it would be reasonable for her to use. There is insufficient personal injustice to Ms or Mr X to warrant investigating. We do not investigate council correspondence where we are not investigating the core issues giving rise to the complaint. There are no good reasons for us to investigate the data protection issue, which he may refer to the Information Commissioner. We do not investigate to only achieve an apology, which is the outcome he seeks.

The complaint

1. Mr X lives with his partner Ms X. Ms X owns a property which is one of several houses served by an unadopted road. The Council owns the land on which the road is built. The Council arranged for a contractor to entirely resurface the road and charge the properties’ owners a proportion of the cost.
2. Mr X complains the Council:
1. failed to properly consult and discuss with Ms X and others about the works and the options available;
2. failed to consider repairing the road instead of fully resurfacing it;
3. delayed in providing him with a breakdown of the costs;
4. failed to reply to some of his communications on the matter;
5. allowed details of the matter to be posted in a public place.
3. Mr X says the matter has put enormous stress on some of his elderly neighbours. He wants a written apology from the Council for mishandling the process.

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The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide:

• any injustice is not significant enough to justify our involvement; or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

6. We normally expect someone to refer the matter to the Information Commissioner’s Office (ICO) if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

7. I considered information from Mr X and the Council, relevant legislation and the Ombudsman’s Assessment Code.

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My assessment

8. Mr X is not the owner of the property served by the road but lives with Ms X who is the property’s freeholder, and he has complained on her behalf.
9. The land on which the road is located is not part of Ms X’s property. It is land owned by the Council. The Council says a condition in Ms X’s title deeds, and the title deeds of all other residents using the access road, requires them to pay for works to the road. The legislation the Council used to organise the works was the Landlord and Tenant Act 1985 (‘the 1985 Act’).
10. We cannot normally investigate a matter where someone has appeal rights to a tribunal. The 1985 Act gives tribunal appeal rights to Ms X to resolve disputes about the works and the Council’s actions. The terms of the 1985 Act cover issues a) to c) in Mr X’s complaint above. If Ms X considers the Council has not followed the appropriate processes under the legislation, resulting in a financial liability which otherwise would not have been incurred, she can appeal to the tribunal. It would be reasonable for Ms X to do this as the tribunal is the body provided by national government legislation to decide such matters.
11. Alternatively, if Ms X does not appeal but disputes her liability to pay for the works and/or the amount charged, she could withhold payment. She may then await the Council taking her to court to resolve any outstanding dispute about the unpaid charge. Ms X may wish to seek independent legal advice, whether going to tribunal or risking possible court action for non-payment.
12. Mr X does not say he or Ms X have been caused a significant personal injustice by the matters complained of. He refers to some neighbours being caused stress, but that would be their claimed injustice. Others’ stress is not a significant personal injustice to either him nor Ms X which would warrant us investigating, so will not do so. Any claim of financial injustice Ms X may make in relation to the works to the road could be the subject of a tribunal appeal, or the Council’s court action, whichever occurs.
13. Mr X says the Council did not reply to some of his communications. We do not investigate councils’ correspondence or complaint handling in isolation where we are not investigating the core issues giving rise to the complaint. It is not an effective use of our resources to do so. That limitation applies here so we will not investigate this aspect of the complaint.
14. Mr X says the Council allowed details of the road works and the cost to be posted in a public place. The Council says a third party displayed information in a public premises. It says this was not a breach of data protection by its officers because they did not choose to display the information. If Mr X believes the Council somehow breached data protection, he may wish to refer the matter to the Information Commissioner’s Office (ICO). There are no good reasons for us to investigate this issue. It is unlikely we could find a council at fault where someone to whom it sent private correspondence has decided to display that information in a public place. That was an action by the information’s recipient, not the Council. There is also no significant personal injustice to Mr or Ms X stemming from this matter which would warrant us investigating it.
15. The outcome Mr X seeks from the Council is an apology. We would not investigate to achieve an apology as it is not a good use of our resources to do so for such an outcome. This is a further reason why we will not investigate.

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Final decision

16. We will not investigate Mr X’s complaint because:
• his partner Ms X has a right of appeal to a tribunal regarding the process the Council has used and its outcome which it would be reasonable for her to use; and
• there is insufficient significant personal injustice caused to Ms or Mr X to warrant us investigating; and
• we do not investigate council correspondence or complaint handling in isolation where we are not investigating the core issues giving rise to the complaint; and
• there are no good reasons for us to investigate his complaint about data protection, which he may refer to the ICO; and
• we do not investigate only to achieve the apology outcome he seeks.

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Investigator's decision on behalf of the Ombudsman